Vintage Constr., Inc. v. State, Department of Transportation & Public Facilities

COMPTON, Justice,

with whom BURKE, Justice, joins, concurring.

I agree with the result the court reaches, but do not agree with its reasoning.

At the outset I note that the court neglects to advise its audience which determination it is reviewing, that of the Department of Transportation and Public Facilities (DOT/PF) contracting officer or that of the superior court. Additionally, it does not state what standard of review is being applied to whichever determination it is reviewing. Since the opinion can be read as approval of de novo review by the superior court, it is at odds with Alaska International Construction v. Earth Movers of Fairbanks, 697 P.2d 626 (Alaska 1985). This will lead to further confusion on a matter already less than clear.1

In my view, this is a case in which the bidder’s actual intent is apparent from the bid document. Indeed, in neither the Department of Law’s letter to Vintage Construction Co. (Vintage) outlining its position, nor in the DOT/PF’s letter to Vintage does the state argue to the contrary. Upon discovery of the error in addition, the contracting officer contacted Alaska International Construction, Inc. (AIC) to determine whether the unit prices and their extensions were correct. Upon confirmation of the correctness of these items, the total price was reduced accordingly, as well it should have been without having to contact AIC. However, confirmation is apparently standard procedure, as this procedure was followed in Chris Berg, Inc. v. State Department of Transportation, 680 P.2d 93 (Alaska 1984). Indeed, the case at bar is in reality Chris Berg dressed in other clothing. The court’s inquiry need go no further. Yet to justify the DOT/PF’s relentless and indiscriminate use of standard specifications (specs) and its own acceptance thereof, it must.

Having concluded that AIC’s intention is not evident from its bid document, the court approves application of standard specs by the DOT/PF and superior court. Vintage argues, correctly I believe, that these specs are not applicable because plainly there is no discrepancy between “the prices written in words and those written in figures.”

No one argues that words and figures for a particular unit are discrepant. A review of AIC’s Bid Schedule discloses that TWO HUNDRED FIFTY DOLLARS is $250.00, FOUR DOLLARS is $4.00, and so on throughout the unit bid price columns. The products of unit price and quantity are required to be written in figures, and the total of those figures is the Total Amount Bid. The Total Amount Bid need only be written in figures, not in words and figures. There is no discrepancy between words and their corresponding figures; therefore resort to the standard specs is entirely inappropriate. The only error is in totaling the Amount Bid column, an error identifiable from the bid document itself, *1217and correctable without resort to standard specs or subjective judgment. Plainly the court does not understand the difference between “price” and “amount” within the context of the Bid Schedule and specs.2

I agree with the court that no competitive advantage was gained by AIC. AIC’s intent can be determined without resort to extrinsic evidence, and DOT/PF did nothing more than effectuate AIC’s intent in correcting the bid. If correction rendered performance at the corrected price unconscionable, the appropriate remedy would be for DOT/PF to reject AIC’s bid as non-responsive.3

In summary, this case is directly controlled by Chris Berg. Resort to standard specs is unnecessary. Standard specs should be applied only when there is an ambiguity in the bidder’s intent; here the face of the bid document discloses no ambiguity. An obvious error in summation of bid amounts was appropriately corrected, and resort to extrinsic evidence was unnecessary.4 Approval of resort to standard specs when bidder intent is obvious is in derogation of time honored notions of offer and acceptance. Under such circumstances, it is an abuse of agency discretion to disregard intent and apply standard specifications. Alaska International Construction v. Earth Movers of Fairbanlcs, 697 P.2d at 646-47 (Compton, Justice, dissenting). This court’s approval of the practice does little to further the establishment of a sound analytical framework within which these cases should be decided. In this case, the agency’s error is harmless.

. In my view, correction of a bid is subject to an abuse of discretion standard. De novo review of that issue by the superior court would be inappropriate.

.Evidence of the court's misunderstanding can be demonstrated by comparing language in DOT/PF’s and the Department of Law’s letters to Vintage to that in the court’s opinion.

The Department of Law told Vintage on February 8, 1984, inter alia:

At bid opening Vintage Construction appeared to be low, based on a total of $2,334,904.50. Following bid opening DOT/PF, in the process of reviewing the bids, discovered an error in addition in AIC’s bid. Instead of the figure AIC had submitted as the total, the actual total of the unit prices and their extensions, was some $249,900.00 lower. DOT/PF contacted AIC and AIC advised that the unit price and their extensions were correct, and that the only error was in adding up the extended prices. AIC is the low bidder, based upon the unit prices and extentions, and a correct summation of the extensions.

(Emphasis added).

In a February 9, 1984, letter to Vintage, DOT/PF said, inter alia:

As specified ... all proposals ... were "compared on the basis of the summation of the products of the approximate quantities shown in the bid schedule of the unit bid price.’’ The summation of those products [as corrected by retotalling the Amount Bid column] appear on the certified completion of bids for the referenced project dated January 31, 1984. Based on the summation of these products on the proposal submitted by Alaska International Construction, Inc., their bid [as corrected by retotalling the Amount Bid column] in the amount of $2,286,707.00 is low.
Under no circumstances would the contract have been awarded to Alaska International Construction, Inc. for an amount greater than the summation of the products of the approximate quantities shown in the bid schedule and the written unit prices contained in their proposal,

(Emphasis added).

The court then observes:
The main point made by the standards, according to the state, is that it is the unit price that controls. This point is especially important in this case because this contract is a unit price contract in which quantities have only been estimated. Thus, the total of the extension of the unit prices is not the contract price.
We agree with the state’s argument. The specifications taken together clearly suggest that the total of the extensions of unit prices is to be used for informational and initial comparative purposes only, and that the critical items are the written unit price.

Opinion at 1215. (Emphasis added).

What is critical is that the summation of the unit prices as extended (the products of the approximate quantities shown in the bid schedule by the unit bid price) is correct.

. If DOT/PF ceased its practice of confirming the correctness of figures and simply effectuated intent or applied standard specs as appropriate under the circumstances, the contractor whose bid was altered would be less likely to obtain any competitive advantage in fact, and other bidders would be less likely to claim competitive disadvantage. The opportunity to "second guess” one’s own bid would be virtually eliminated.

. See generally P. Shnitzer, Government Contract Bidding, Ch. 20 § C(3) (2d ed. 1982).